E7/5 








ANNEXATIOX OF THE HAWAIIAN ISLANDS. 




SPEECH 



HON. STEPHEN R. MALLORY, 

OF FLORIDA, 



SENATE OF THE UNITED STATES, 



Friday, July 1, 1898. 



AA.^'ASHING'rOX. 

1898. 






68516 



^ (^ SPEECH 



V OF 

.-•'feoN'. STEPHEN E. MALLOEY. 



The Senate havin|: under consideration the joint resolntion (H. Rss. 259) 
to provide for annexing the Hawaiian Islands to the United States- 
Mr. MALLORY said: 

Mr. President: This measure is one which, in my jiidgment, 
entitles it to as grave and deliberate consideration as any meas- 
nre whicli has been before Congress since the organization of the 
Republic. It involves a new departure in the policy of the Gov- 
ernment of the United States; it involves an increase of our Army 
and Navy; it involves the establishment of a system of govern- 
ment in a colony of the United States such as never heretofore 
has existed. 

In addition to the very grave questions which present them- 
selves when we come to consider the policy or the expediency of 
annexing these islands, we are confronted with another question, 
and one which meets us at the very threshold of the subject, 
which, in my humble judgment, is far more important, and will 
be more far-reaching in its influences and effects upon our «oun- 
try than any of the other questions that are involved in the meas- 
ure. 

This is a joint resolution emanating from the House of Repre- 
sentati\"es, proposing to ratify and accept an alleged proposed 
agreement made by a sovereign power to this separate and distinct 
sovereign power, the United States of America. For it we have 
no precedent; against it, in my humble judgment, Mr. President, 
there are arguments to be urged which are so irresistible that 
those who give them adequate and due consideration must neces- 
sarily hesitate before they take the fatal plunge which the adop- 
tion of this resolution means. 

And yet, notwithstanding the important, grave, and solemn 
questions which underlie this measure, it has not been discussed, 
it has not been presented to the deliberate consideration of the 
people of the United States. And even in this body, when we who 
are opposed to the measure are undertaking to invite the attention 
of our colleagues to the consideration of the points which we con- 
sider to be good as against annexation, even here we hear com- 
plaints and innuendoes and insinuations as to the purpose of those 
who are opposing it which are certainly both unfounded and un- 
just. 

It has been said in the public press, or at least that element of 
the pttblic press which favors the annexation of the Hawaiian 
Islands, that the matter has been before the country for many 
years; that the people are informed as to the merits and demerits 
of the proposition, and that it is a useless waste of time for Sena- 
tors to consume day after day in delivering their speeches upon 
the subject. But, Mr. President, while the question possibly has 
2 3531 



been mooted from time to time, while in the past there have on 
divers occasions been movements looking to the consummation of 
the result which is sought to be attained by the pending joint 
resolution, still we are all aware of the fact that none of the great 
parties of the country has committed itself to any view or ex- 
pression of views which can be construed into an indorsement of 
the proposition that is now before the Senate. ■ . 

I have the aiithority of the venerable and respected Senator 
from Vermont [Mr. Morrill], who addressed the Senate upon 
this subject some days ago, for the assertion that this measure 
has not received anything like adequate consideration. In that 
speech he said: 

One prominent objection to the pending measure is that the people o£ 
neither Hawaii nor of the United States have been consulted or taken into con- 
fidence in i-elation to the impending compact. The promoters have been re- 
luctant to trust the people with it. The country is to wake up nest week 
and find a new but unwelcome member ■'incorporated," as Mr. Sherman, 
the Secretary of State, described it, "into the body politic of the United 
States." At Hawaii something leaked out about it after its final determina- 
tion. Here the Senate was informed about it after the Secretary had signed 
the treaty; but even the Senate did not permit itself to discuss ii except in 
secret session until its paucity of votes was disclosed; and it came originally 
in the form of a treaty, not to hide the fact that a treaty was not a courageous 
but a cowardly way to bring a State into the Union, as some people thought, 
but for the reason that the Hawaiian promoters of the compact could fix up 
their part of it in that way with less lubrication. The authorship of this 
state i^aper appears to have baen miscellaneous and partly unknown, having 
been cut and dried in Honolulu, and yet it was to have been consented to by 
the Unit(5d States Senate without subtraction or addition, as the committee 
reporting it seem to have regarded it as properly inspired and inerrant. 

There is the testimony of the Nestor of the Senate, the testimony 
of a gentleman who but recently declared on the floor of the Sen- 
ate that he had but one ambition in life and that was to be right, 
the sincerity of which expression no one will question — a gentle- 
man for whom all of us, irrespective of party affiliations, have 
the most exalted esteem, respect, and veneration. And yet we 
hear it said here, and we see it in the public press from day to day, 
that this matter has been discussed to an extent that renders it 
absolutely unnecessary for anything more to be said upon it; that 
the people are unanimous almost in their desire to have the Sen- 
ate take action upon it, and that those Senators who dare to stand 
upon this floor and consume the time necessary to express their 
A'iews on this vast and important question are resorting to methods 
which are not legitimate and are exposing themselves to popular 
condemnation. 

Mr. President, I desire to be understood as of those who believe 
that it is their duty to express their views upon this subject with- 
out reference to whether they meet with the favor of a majority 
or a minority in this body. I am here as one of the representa- 
tives of a sovereign State, and I am free to state that it is impos- 
sible for me to say now what are the wishes of a majority of the 
people of that sovereign State. But I know what my views are; 
I know that they are honest; I know that they are based upon a 
careful, deliberate examination of the question; and knowing 
that, I propose to express those views; I propose to put them on 
record; and if in doing so I incur the censure of any gentleman or 
any set of men, I am willing to abide the result. 

Jlr. President, I said this question has not been discussed. 
Whose fault is it that the people are iminformed, that the people 
do not know the facts which have been disclosed in the debate 
here within the last few days by gentlemen who are opposed to 
annexation — the facts as to the distances between points ou the 
3534 



Pacific coast and the Hawaiian Islands and the Philippine Islands, 
and the distances between ports on the same coast and ports in the 
Aleutian Islands, equally as good as any port in the Hawaiian 
Islands, and other facts of importance as bearing on certain phases 
of this qixestion? But conceding for the sake of argument that 
some consideration has been given to those points of detail, expe- 
diency, and policy, I think I can say with truth that the other 
question, the great vital question, the constitutionality of the step 
we are about to take, has received, outside of this (Jhamber, no 
consideration whatever. 

If there has been any such discussion in any of the papers of this 
coiintry in which the question of annexation has been treated of, 
I have not seen it. We had the opportunity six, seven, or eight 
months ago to inform the people of the United States as to all the 
merits and all the details of this important step. I am disclosing 
no secret when I say it was within the power of a majoritj' of this 
body to deliberate in public instead of secret session on the ques- 
tion of the ratification of the treaty of this country with the Ha- 
waiian Islands. It was within their power to bring this question 
out in open Senate and to have the arguments and debates printed 
in the Record, so that the people at large could have the time and 
opportunitj' to consider the pros and cons of the question. 

They speak of their immense majority. We are told that the 
minority here is almost insignificant and that it is practically 
running the Senate. As one of the minority, at least Lean say 
that in connection with my desire to put myself and my views 
upon record on this great question my other and only pui-pose is 
to endeavor to impress upon the people with whom I live and 
whom I in part represent a belief and a conviction that the step is 
not only inopportune, not only impolitic and inexpedient, but that 
in the way in which it is sought to be taken at this time it is in 
contravention of the fundamental law of the land. 

[At this point Mr. TURPIE suggested the absence of a quorum, 
and the roll was called.] 

Mr. MALLORY. Mr. President, in addition to the constitu- 
tional question to which I have adverted there is also presented 
for our consideration in connection with the action proposed a 
question which, in my judgment, is a highly moral question. It 
involves complicity on our part in the violation of the constitution 
of a sovereign State. The authority on the part of the Hawaiian 
Government which it is contended will justify the passage of the 
joint resolution of annexation by Congress is found in the thirty- 
second article of that constitution. It provides that the President 
of Hawaii, with the approval of the cabinet, is authorized to make 
a treaty of political or commercial union between the Republic of 
Hawaii and the United States of America, subject to the ratifica- 
tion of the Senate of Hawaii. 

The constitution of Hawaii expressly pro^^des that in the event 
of political or commercial union with the United States being 
sought hj that Government, it shall be done in a particular way — 
by a treaty. Yet the advocates of annexation under the joint res- 
olution tell us that if we pass the joint resolution there will be no 
difficulty whatever about its being accepted by the Hawaiian Gov- 
ernment, notwithstanding that solemn provision in its constitu- 
tion. While we have a perfect right, undoubtedly, in my view, 
to do so, and to do many other things that may be unjust, im- 
moral, and inequitable, it is a question I think worthy of consid- 
eration whether we should bring oui'selves to the point of becom- 

8531 



ing pavticeps criminis in the deliberate, willful violation of the 
constitution of a sovereign countrj\ 

Mr. President, we have now upon our table a treaty proposed to 
be ratified by the Government of the United States for the purpose 
of carrying out and accomplishing the identical objects sought to 
be accomplished by the joint resolution. That treaty came to u3 
from the executive branch of the Government as the power to 
wliich is confided the duty of making treaties, and it remains upon 
our desk unacted on, it is true, but still not rejected. What mo- 
tive has led to the abandonment of the effort to ratify the treaty 
I shall not undertake to name. 

I can not sav that it was inspired by a fear that if subjected to 
a vote in this "^Chamber in secret session it would fail to receive 
the requisite two-thirds vote prescribed by the Constitution, be- 
cause I can not undertake to say how any particular man or set 
of men under certain circumstances will vote. But it is a fact 
that in the regular process and in the manner prescribed by the 
Constitution there is an instrument waiting to be acted upon by 
this body which, if acted on by the constitutional majority of 
two-tliirds, will consummate the purpose sought to be accom- 
plished by the joint resolution. Yet, while the instrument is 
here, and while it has not been rejected, we are suddenly con- 
fronted with a joint resolution from the other branch of Congress, 
not emanating from the Executive, but coming spontaneously 
from the House of Representatives, proposing to accomplish the 
identical thing which the President has undertaken under the 
treaty-making power to submit to the judgment and action of 
this body. 

I claim, Mr. President, that there is not only no authority for 
this action, but that a correct interpretation of the Constitution 
reveals as a necessity that such action is in contravention of the 
Constitution. Who has undertaken to sustain the proposed action? 
Although it is said that there is nearly a two-thirds majority in 
this Chamber in favor of it, how many of that excessive majority 
have undertaken upon the floor of the Senate to justify the pro- 
posed action? They can be counted upon the fingers of the one 
hand. 

The Committee on Foreign Relations, which made a report 
recommending the adoption of the joint resolution, did in that 
report present an argument in favor of their view in connection 
with the measure, and they also undertook, in the absence of an 
opposite side, to present the arguments of the opposition and to 
meet those arguments. I shall not refer to the arguments based 
upon the expediency and necessity as a war measure and as a com- 
mercial advantage, which are urged on all hands, but I will con- 
fine myself to the manner in which the committee undertook to 
meet the alleged objections to the constitutional question involved 
in this measure. Let us see what they are. 

The report, under a black-letter heading, announces "Twenty 
objections to the annexation of Hawaii, and replies thereto; " 
and in italics we find the objections stated. These objections are 
represented as urged by the opponents of annexation, and the 
Committee on Foreign Relations having decided to make a favor- 
able report, feel in duty bound, for the edification and instruc- 
tion of the Senate and of the country, because copies of this report 
go to the country broadcast, to state what those objections of the 
opponents of annexation are and to meet them in the iraniier in 

353i 



wbicli the Committee on Foreign Relations can meet them. Now 
vre have the first objection: 

The committee says that the opponents of annexation contend that it is 
unconstitutional because the General Government is limited in its powers 
to those expressly conferred upon it by the Constitution. 

The Constitution does not specifically grant power to annex a territory, 
and therefore the power does not exist. 

I ask Senators if it is true that that objection has been offered 
by the opponents of the annexation of the Ha\vaiian Islands? 

Is it true that that argument has been urged at anytime within 
recent days, within recent times, or recent years as a reason why 
the Hawaiian Islands should not be annexed? 

We are charged with claiming that — 

The Constitution does not specifically grant power to annex territory, and 
therefore the power does not exist. 

Is there any Senator v>-ho is opposed to the annexation of the 
Hawaiian Islands who has presented such an argument or such a 
proposition as a reason why they .should not be annexed? I think 
I am safe in saying that no one has done so. Not only no Sena- 
tor, but no one who understands the question, no one who under- 
stands a little law has enunciated such a proposition, and yet the 
Committee on Foreign Relations devotes two pages to the demoli- 
tion of this alleged objection of the anti-annexationists. 

Again, as a second objection, they say that those who are op- 
posed to annexation claim " it is unconstitutional because Hawaii 
is not contiguous to the United States." I submit that that is not 
a fair presentation of the constitutional objection which is enter- 
tained by Senators to this step. No Senator on this floor, and I 
do not think any member of the other House, nor anyone in the 
country, has contended that it is unconstitutional because Hawaii 
is not contiguous to the United States. There may be a question 
of policy arising out of that fact, but with the decisions of the 
Supreme Court of the United States, with the utterances of our 
distinguished statesmen from the days of Mr. Jefferson down to 
the present time, it would be absolute folly for any intelligent 
man to undertake to claim that that is a constitutional reason 
why Hawaii should not be annexed, and none has done so. 

The third objection alleged to be entertained by those who are 
opposed to annexation is: 

It is unconstitutional because its inhabitants are not homogeneous with 
the people of the United States. 

Mr. President, I can see very well how that may be the basis of 
an argument against the policy or expediency of such a step, but 
I do not think the Committee on Foreign Relations will be able 
to find anyone here or elsewhere who is opposed to annexation who 
would ever base his grounds of unconstitutionality to annexation 
on the fact that the inhabitants of those islands are not homoge- 
neous. 

That is all the constitutional question pertaining to this subject 
that the Committee on Foreign Relations have thought proper to 
discuss. They have presented in their report three propositions, 
which they tell us and the people of the country are all the ob- 
jections based on alleged constitutional grounds by those who are 
opposed to annexation— men of straw, dummies, set up to be 
knocked down, and they gravely and solemnly proceed to knock 
them over, and then dismiss the question of the constitutionality 
of this proceeding as established. 
C531 



Mr. MORGAN. Will the Senator from Florida allow me to 
interrupt him? 

Mr. MALLORY. Certainly. 

Mr. MORGrAN. The Senator has, I think, not read the report 
of the committee. If the Senator will read the first two or three 
pages of the report, he will find that the committee discuss in fall 
the constitutional status of the question not only npon their inter- 
pretation of that instrument, bnt upon the interpretation given 
by Congress to it in the annexation of Texas. The Senator makes 
no allusion at all to that part of the discussion by the committee. 

Mr. MALLORY. It is not my purpose to deal unfairly either 
with the committee or its report". I have read the report, and I 
think that the most salient points which have been made or at- 
tempted to be made in favor of the annexation are those which 
are put in italics and refuted as the arguments of the opposition 
under the heading, on page 4.j of the report, entitled "Twenty 
objections to the annexation of Hawaii, and replies thereto. " But, 
Mr. President, they do go into an argument, and under the first 
head say that - 

It'is unconstitutional, because the General Government is limited in its 
powers to those expressly conferred upon it by the Constitution. 

The Constitution does not specifically grant power to annex territory, and 
therefore the power does not exist. 

The Committee on Foreign Relations has furnished us some 
authority in support of its refutation of those heretical proposi- 
tions. 

The instances of interpretation by the Supreme Court of the United States 
of the constitutionality of annexation are four in number- 
Say S the report— 

viz, one in 1828, two in 1850, and one in 1889. 

The first was in the case of the American Insurance Company r.5. Canter, 
to be found in 1 Peters, 512. The opinion was delivered by Chief Justice 
Marshall, in the course of which the following words were used: 

"The Constitution confers absolutely on the Government of the Union the 
power of making wars and of making treaties. Consequently that Govern- 
ment possesses the power of acquiring territory, either by conquest or treaty. ' ' 

The two decisions rendered in 1S5U were by Chief Justice Taney. The de- 
cision in 1889 is the case of the Mormon Church vs. The United States, con- 
tained in 136 United States Eeports, page 42. In the course of the decision, 
the court used the following words: 

"The power to acquire territory is derived from the treaty-making power, 
and the power to declare and carry on war." 

" The incidents of these powers are those of national sovereignty and be- 
long to all independent governments." 

Those authorities are cited in support of the contention that the 
Government of the United States has the power to annex terri- 
tory, a i)roposition which all, I believe, unquestionably all, those 
who are opposed to this annexation resolution, are in hearty ac- 
cord with. We do not deny that the United States Government 
has the power whenever she thinks proper, whenever she can do 
so consistently with the rights of others, to annex territory. There 
has not been a word said in this Chamber, or anywhere else that 
I know of, in opposition to that proposition. The authorities that 
are cited here are authorities in support of the contention which 
we make — that the Government, the sovereign power of the L^nited 
States, has the right to annex territory, but that right must be 
exercised in a particular way and through a particular branch of 
the Government of the United States. 

Later on, under the second objection, the committee, in its dis- 
cussion, uses language to which I call the attention of Senator.-?. 
3534 



8 

.The second objection which they say is urged by those opposed to 
annexation is that — 

It is unconstitutional because Hawaii is not contiguous to the United 
States. 

The committee says: 

The opponents of the constitutionality of annexation, finding the prece- 
dents and reasoning strongly against them, have fallen back from the position 
that annexation is directly prohibited by the Constitution to the Claim that 
there are certain "implied prohibitions" in the Constitution which are as 
binding as those which appear on its face and that among these "implied 
prohibitions" is the one above stated. 

It is a man of straw, as I have said— something set up to be 
knocked down— because no one among those who are opposing 
this measure has for an instant contended as they are charged in 
this report as contending. 

The only reason — 

Saj's the committee — 

presented why the annexation of noncontiguous territory is unconstitutional 
is that the " poojile of the day " did not discuss uor contemplate the aunosa- 
tiou of such territory. 

You remember it was a constitutional question. 

We have seen by the authoritative decision— 

Says our committee — 
of the Supreme Court in 1889— 

That was the Mormon Church case- 
that the power to acquire territory is an incident of national sovereignty. 

The Supreme Court says "that the power to acquire territory 
is an incident of national sovereignty." Now, the committee is 
arguing this question and is undertaking to upset what it says is 
a contention on the part of the opposite side, and it uses the fol- 
lowing argument: 

We have seen by the authoritative decision of the Supreme Court in 1889 
that the power to acquire territory is an incident of national sovereignty; 
that is to say, the United States has the right to acquire territory, or any 
other property, because it is a nation. 

We admit that. 

It has the same rights and powers in this respect that any other nation 
has— that, for example, England has. 

I call the attention of Senators to this reasoning. I do not mean 
to say that the committee has undertaken to deliberately distort 
the language or the reasoning of the Supreme Court in that case, 
but I invite the attention of Senators to the reasoning which is 
here pursued in connection with that case. Taking the doctrine 
laid down by the Supreme Court of the United States to the effect 
that the right to annex is a sovereign right, an incident of sover- 
eignty, and that the United States as a nation, like all other na- 
tions, has that right — 

It has the same rights and powers- 

Says the committee — 
in this respect that anv other nation has— that, for example, England has. 
There is manifestly no limitation upon the power of England to acquire terri- 
tory. How, then, can there be any limitation upon the power of the United 
States to do so? 

Now, to one who does not examine critically this piece of rea- 
soning it would appear the conclusion had been reached that there 
was no limitation as to the manner in which the power can be 
exercised. There is manifestly no limitation upon the power of 
England to acquire territory. In a country where the sovereign 
is simply a figurehead who can do no wrong and very little good, 



9 

where Parliament is omnipotent, there is no limitation either upon 
the authorit}' and power or upon the method or instrumentality 
which may be employed for a certain purpose. 

But while the Constitution of the United States, which is an 
instrument of limitation, gives to the people of the United States 
the power to annex territory by the usual methods employed by 
nations of the world, it nevertheless distinctly, unequivocally, 
puts that power in the hands of one particular branch of the Gov- 
ernment, and necessarily and impliedly, from the magnitude of 
the power, from the fact that it has no limitations as to the sub- 
jects it will treat of, intended that that power should be exclu- 
sively in the hands of the Executive. 

These, then, Mr. President, are the arguments which the Com- 
mittee on Foreign Relations have furnished us against the alleged 
argument that the proposed proceeding here is unconstitutional. 
But there have been other champions who had the courage of their 
convictions and who presented to the Senate their views and argu- 
ments, setting forth the reasons why they thought there was no 
infringement of the Constitution by this proposed action. 

The Senator from Colorado [Mr. Teller] , who I regret is not 
now in his seat, delivered a speech in which he gave his views. I 
have here an extract from his speech in which he very tersely and 
with that clearness which is characteristic of the gentleman stated 
v,'hat he believed to be the constitutional justification of the pro- 
posed action. He said, 

The right of Jefferson (and Jefferson himself had some doubt upon it, it 
seems) to acquira territory by treaty or in any other way was denied. It 
seems to me we fail to see what I think everybody ought to recognize, that 
it IS the right of every sovereign power, every nation, to add to its territory 
■whenever it sees fit. I assert here that the Government of the United States 
may add territory to territory without any constitutional provision what- 
ever, and that must have been understood by the fathers, because that was a 
recognized power of sovereignty which they could not have overlooked; and 
if they had not intended at the time that that should be done, they would 
have provided against it. They did not provide against it, and in the very 
beginning of our administration of public affairs we took in the Louisiana 
purchase. 

Now, I have no quarrel with the distinguished Senator from 
Colorado as to the right of the United States to acquire territory. 
I agree with him fully. I could not undertake to disagree with 
him without at least putting myself in opposition to the opinions 
of the most distinguished jurists of this country and some of the 
ablest law writers and statesmen we have had. But I do differ 
with him as to the manner in which that power should be exer- 
cised. I say the Constitution puts in the hands of the President 
the power to annex all the territory that is necessary or proper to 
annex to this couutrr. It is true that power 

Mr. SPOONER. You do not mean the President alone. 

Mr. MALLORY. I was going to say with the consent of the 
Senate. The President, however, is the mover. The power which 
the Senate exercises is simply a veto power; it is not the mover. 
The President is the originator or designer, and the two-thirds of 
the Senate concurring give vitality and life to the proposed meas- 
ure and it becomes a part of the supreme law of the land. The 
contention, however, of the Senator from Colorado is that there 
is some other power; that there is a power innate and inherent in 
all sovereigns that authorizes them to annex territory. 

Granting that, granting that if we did not have that limitation 
upon it in the Constitution confining the exercise of the treaty- 
makmg power to the Executive, then some other branch of the 

3534 



10 

Government, and possibly Congress, ought to exercise the power, 
as was the case under the old Confederation, still we have to bear 
in mind the fact that the framers of the Constitution, knowing at 
the time what had been the rule under the Confederation and that 
all treaties had to be subjected to the ratification and approval of 
Congress, in their deliberations over that branch of the great sub- 
ject committed to them saw proper and deemed it but just and 
right that that great power should be confided to the Executive, 
subject to the approval or disapproval of two-thirds of the Senate. 

[At this point Mr. Turpie suggested the absence of a quorum, 
and the roll was called.] 

Mr. MALLORY. Mr. President, when I was interrupted I was 
reviewing the statements or arguments presented by those gentle- 
men who favor the adoption of this resolution who have addressed 
the Senate in support of their views, and I had referred to the 
expression of view of the Senator from Colorado [Mr. Teller], 
who at the time was absent, but whom I see here now, and was 
calling attention to the view expressed by him. He stated, and I 
quote his exact language: 

I assert here that the Government of the United States may add territory 
to territory withovit any constitutional provision whatever, and that must 
have been understood by the fathers, because that was a recognized power of 
sovereij?nty which thev could not have overlooked; and if they had not in- 
tended at the time that that should be done, they would have provided 
against it. 

Mr. President, I do not purpose just now to criticise the view 
expressed by the Senator from Colorado, but I would say that the 
Government of the United States has not overlooked the question 
of annexation; that there is provision in the Constitution for 
the exercise of that sovereign power, and that provision, as I 
think I will be able subsequently to show, amply provides for the 
annexation of any territory that, in the judgment of those who 
are exercising the power of this Government, is desirable terri- 
tory to annex. 

Another Senator, who favors the annexation of Hawaii, took 
occasion to give his reasons as to why this proceeding was con- 
stitutional and to combat the views expressed by Senators who 
oppose this resolution with his expression of opinion as to why 
the proposed action is constitutional. 

The Senator from Ohio [Mr. Foraker] , who is undoubtedly 
very keen in his ability to appreciate a point, and whose fairness 
in argument, I think, is a model for the Senate, stated in the fol- 
lowing language his opinion as to why this resolution could be 
adopted without any injury to the integrity of the Constitution. 
He said: 

Senators talk about it being unconstitutional to annex except only by 
treaty, as though the Constitution of the United States had provided that 
there should be annexation by treaty. Mr. President, the Constitution of 
the United States is silent on the question of the annexation of territory. 
It does not seem to have entered into the minds of the framers of the Con- 
stitution to put into that instrument any express provision on that subject. 
They contented themselves, as they wisely did with other subjects, in regard 
to this subject with a general provision. They gave to Congress the power 
to promote the general welfare, and that carries along all the implied powers 
essential to the consummation of that purpose. 

When they came to the treaty-making power they did not say in the Con- 
stitution what should be the subject-matter of a treaty. They simply said 
that treaties might be negotiated by the President, subject to ratification by 
the Senate; they did not say what we should treat about, and I agree with 
Senators on the other side that a treaty is a contract. You can not have a 
contract unless you have two parties to it, and you do not have any contract- 
that has been your contention throughout— until the treaty has been signed 
on both sides. The very minute that is done one of the parties is gone, and 
.S53-1 



11 

there is no continuing contract. Therefore it is simply a cession on their 
part and an acceptance on ours, and it might be done just as well by legisla- 
tion as otherwise. 

The same Senator in another portion of his remarks gave utter- 
ance to the following: 

But that is not this case, and I want to distinguish this case from that. I 
say, as a broad proposition, that the Congress of the Jnited States has 
power expressly given to it to promote the general welfare, and if we deem 
it a promotion of the general welfare to acquire any island of the sea that has 
its own government— but I will take the case before us— if we deem it to be a 
promotion of the general welfare to accept the cession from the Republic of 
Hawaii of all its territory, one of the conditions being that the Republic of 
Hawaii ceases to be, it is not a proper case for a treaty, for the very minute 
the treaty is consummated there is no treaty— there is no contract, for one 
of the contracting parties is politically dead and gone. 

The Senator from Ohio takes the position that a treaty of an- 
nexation of an entire country is not a treaty. He takes the posi- 
tion that the proposed treaty which is now upon the desk of this 
body is not a treaty, and necessarily was not rightfully proposed 
by the Executive to this body for ratification, and it being an im- 
possibility by reason of the fact that this was not a treaty arising 
from the extinction of one of the parties almost simultaneously 
with the signing of the treaty, there must be some other method, 
and that method is to be found in the general- welfare clause. I 
do not exactly understand which one of the two clauses in the 
Constitution referring to the general welfare the Senator from 
Ohio had in mind, and I should be glad if he would specifically 
state whether the general welfare mentioned in the preamble to 
the Constitution or the general welfare referred to in the taxing 
provision is the particular general welfare that he refers to, or 
whether there is any other. 

Mr. FORAKER. I understood the Senator to address an inquiry 
to me? 

Mr. MALLORY. Yes. 

Mr. FORAKER. I did not have the Constitution before me, 
but I had in mind, when I used the language to which the Senator 
has called attention, the general provision of the Constitution 
empowering Congress to do certain things, among others to pro- 
vide for the general welfare. 

Mr. MALLORY. The Constitution in its preamble speaks of 
the general welfare, and also in section 8 of Article I. 

Mr. FORAKER. My contention, as 1 recalled at the time the 
provision of the Constitution without stopping to look at it, was 
simply that Congress was especially invested with the power to 
provide for the general welfare. I was not undertaking to quote 
the language of the Constitution,butImerelyreferred to the fact, 
as I understood it, that it was competent for Congress to .judge 
what was the promotion of the general welfare and provide ac- 
cordingly. In the section to which the Senator doubtless refers, 
section 8 of Article I, it is provided as follows: 

The Congress shall have power to lay and collect taxes, duties, impost.?, 
and excises, to pay the debts and provide for the common defense and gen- 
eral welfare, etc. 

I was speaking in a general way, without having any particular 
section in mind, of what I conceiVe to be the unquestioned power 
of Congress, namely, to take care of the interests of this country, 
and whenever they require the doing of something, even though 
it be the acquisition of an island in order that our general welfare 
may be promoted, that the Congress can do it. 

353-1 



12 

I think there have been snch cases. Since I made the remark to 
•which the Senator has called attention, the Senator from Massa- 
chusetts [Mr. Hoar] has called my attention to a case which oc- 
curred while Mr. Webster was Secretary of State— a case where 
property was acquired from another country without any treatj', 
and simply by act of Congress. I will ask the Senator from Mas- 
sachusetts to call the attention of the Senator from Florida to that 
case. It did not seem to occur to Mr. Webster, who had some 
reputation in his day as a constitutional lawyer, that there was 
any infirmity in the power of Congress to do that. 

Mr. MALLORY. I desired merely to understand the point 
made by the Senator from Ohio, because 1 did not wish to mis- 
represent liim or to misstate his argument. As 1 understand his 
argument, it is that by reason of the fact that as soon as the treaty 
is ratified, the sovereignty of the Hawaiian Islands ceases, there 
is no treaty. Consequently, there must be some other way in a 
case of that kind of annexing territory, and therefore the power 
must reside in Congress. Why should it rest in Congress any 
more than in the judiciary or in the executive does not appear, 
but that, I believe, is the argument, which I desire to state fairly, 
because it is the argument of the opposite side that we have to 
meet. We have had but few: very able, it is true. 

Another distinguished Senator, advocating the adoption of the 
joint resolution, had the courage of bis convictions and favored 
his brethren of this body with them. The Senator from Nevada 
[Mr. Stewart] took occasion not so much to answer any objec- 
tion as to the unconstitutionality of the measure, as to tell us how 
the job could be done, and if I am not mistaken— it is not" my 
wish or i)urpose to misstate the Senator's position— his position 
was that this could be done, because if we did it, whether rightly 
or wrongly, whether constitutionally or unconstitutionally, once 
done it was irrevocable, and there was no power on earth that 
could inquire into its propriety, its rectitude, or its constitution- 
ality. That, Mr. President, I do not think is an overstatement of 
the view expressed by the distinguished Senator from Nevada. 
His remarks in that connection have not yet appeared in the 
Record; at least they had not when I yesterday endeavored to 
look for them, and I have to state from memory the position which 
he took. 

But as I understand his contention, it is that it makes no dif- 
ference whether the Constitution authorizes this proceeding or 
whether it prohibits it, impliedly or expressly; that if we do it, no 
court in the United States has the right to investigate it: there is 
no proceeding by which it can be inquired into; and that once 
done, it will be accomplished and that will be the end of it. That 
is an enunciation of political ethics that I think has been made in 
this Chamber for the first time. I shall not undertake to do more 
with reference to it than merely to announce it. I confess I was 
surprised that such a proposition should be submitted to the Sen- 
ate, but 1 do not think it is entirely out of keeping with some of 
the arguments which I have heard urged in favor of this measure. 

One more of the advocates and exponents of this measure has 
been lieard upon the floor of the Senate, and that is the distin- 
guished Senator from Alabama [Mr. Pettus] , who spoke to-day. 
1 was unable to follow entirely the argument of the distihguished 
Senator, but as far as I could observe as to its bearing on the con- 
stitutional question involved in this case the Senator argued that 
Congress had the war-making power, that it could by war annex 
;5534 



13 

territory, and that it was absurd to argue that when Congress 
could plunge this country into a condition of war and could annex 
thereby any quantity of territory, Congress did not have the power 
peaceably and bj- the processes of legislation to annex the same 
territory. 

The Senator contended that a great part of the territory of this 
country was acquire'd by war, and I imderstood him to defy any- 
body to show that the tenitory of New Mexico was not acquired 
by war. I have great respect for the Senator from Alabama. 

Mr. PETTUS. I admitted that the title was quieted by treaty, 
but not acquired. 

Mr. MALLORY. That is a question I will not undertake to 
discuss with the Senator. I merely wish to call the Senator's at- 
tention to the fact that there was a treaty, which I have here. 

Mr. PETTUS. I so stated. 

Mr. MALLORY. I did not catch the Senator's remark" at the 
time of his speech. However, while the war power is undoubt- 
edly one of the powers under which territory can be annexed, in 
the majority of instances, even when the war power is invoked, 
while territory is held by our Government in the custody of the 
military it is not annexed, and in the majority of instances it is 
never annexed until the treaty steps in. I know the Senator dis- 
putes that. The Senator draws a distinction between the annex- 
ation of the Territorj- of New Mexico and the acquiring of title. 
Chief Justice Marshall, in a case which has been referred to in 
this debate incidentally, touched upon this subject, and while it 
may be considered obiter dictum, it was the opinion of that dis- 
tinguished gentleman and I think was pertinent to the case which 
was before the court. It is the case of the American Insurance 
Company and others vs. Canter, 1 Peters. The Chief Justice, in 
speaking of the treaty power, says: 

The Constitution confers absolntelj- on the Government of the Union the 
powers of making: war and of making treaties. Consequently that Govern- 
ment possesses the power of acquiring territory either by conquest or by 
treaty. 

That proposition is repeated again and again in the decisions of 
the Supreme Court down to a comparatively recent decision, the 
Mormon Church case, in 136 United States Reports. Chief Justice 
Marshall, going on, says: 

The usage of the -world is, if a nation be not entirely subdued, to consider 
the holding of ^conquered territory as a mere military occupation until its 
fate shall be detei-mined at the treaty of peace. 

I invite the attention of the Senator from Alabama to that ex- 
pression. 

If it be ceded by the treaty, the acquisition is confirmed, and the ceded 
territory becomes a part of the nation to which it is iinuesed either on the 
terms stipulated in the treaty of cession or on such as its new master shall 
impose. 

There the learned Chief Justice lays down the proposition that 
unless we actually subdue the countr\-, so long as there is any ves- 
tige of its own sovereignty left, the territory is acquired by treat)', 
notwithstanding it is in the military iDOSsession of the Govern- 
ment. 

In the case of New Mexico, the Government of Mexico was not 
entirely subdued, and if the Chief Justice's opinion is worth any- 
thing, our holding of that territory was simply a military hold- 
ing; and while it may have been, to a certain extent, an instru- 
mentality in acquL'ing the territory, it was not the instrumen- 
3534 



14 

tality by which the territory was acq^uired, for that was acquired 
by the treaty. 

I have gone now over the arguments, I believe. These are all 
which have been urged in this body in behalf of the constitution- 
ality of the joint resolution. We have the report of the commit- 
tee with its refutation of alleged objections by those opposed to 
annexation. "We have the argument by the distinguished Sena- 
tor from Colorado [Mr. Teller] , giving it as his opinion that the 
United States has the sovereign power and can exercise that sov- 
ereign power in the acquisition of territory at any time. We have 
the argument by the distinguished Senator from Ohio [Mr. FOR- 
AKER]"that a treaty which annexes an entire sovereignty is not a 
treaty, and therefore we must fall back upon some other inherent 
and innate power of Congress to annex territory. 

Mr. FORAKER. Will the Senator from Florida allow me? 
What I said, when fairly construed, was that it was not a con- 
tinuing contract; that it was consummated by the transaction; it 
was concluded. 

Mr. MALLORY. The Senator did, I believe 

Mr. SPOONER. The Senator from Ohio said it could not be a 
treaty; that one party to it died by the terms of the contract, and, 
therefore, it was not a contract. In other words, it was not a 
treaty. 

Mr. FORAKER. It was not a treaty; rather it was not any 
longer a treaty, according to the definition contended for by Sen- 
ators in opposition; their'definition was that a treaty was a con- 
tract. I say there can not be a contract without contractual re- 
lations, and there can not be contractual relations without the 
existence of at least two parties. It would be simply an exe- 
cuted contract. 

Mr. MALLORY. I understood the Senator also to contend 
that it could not be a treaty even beforehand. 

Mr. FORAKER. Yes. I was simply replying to the argument 
made on the other side in that connection and agreeing witli Sen- 
ators who made that contention, that there was not, of course, any 
treaty until the instrument was signed and ratified, and that 
there could not be afterwards any treaty, because in the very 
moment of signing and ratifying one of the parties perished. 

Mr. MALLORY. But there was a signing before the disap- 
pearance or the destruction of the party took place. 

Mr. FORAKER. Certainly. There was the signing before, 
but the signing which we now have is not effectual to create a 
treaty until it has been ratified by the Senate. The very minute 
the last act is done there is nothing but an executed transaction, 
and until it is consummated there is nothing 

Mr. SPOONER, Will the Senator allow me for a moment? 

Mr. FORAKER. I was contending that the term "treaty" 
implied an existing and continuing contractual relation between 
existing parties, and therefore any transaction that did not in- 
volve that idea was not so properly the subject-matter of a treaty 
as it was of legislation, if it could be effected by legislation, and 
my contention was that it could be effected by legislation. 

Mr. SPOONER. The Senator says "not so properly." His 
ai-gument was that it could not at all. It is not a question of de- 
gree. It is a question of possibility. The Senator correctly says 
a treaty is a contract between two sovereign States. There could 
not be a unilateral treaty. 

Mr. FORAKER. In using the word " properly "' I was referring 
3534 



15 

to wliat I said the other day. If the Senator vrill recall what I 
said, I used that term aud modified my claim in that way, because 
I was contending that while this was, in my judgment, the more 
proper way to proceed, yet in legal effect the result by treaty was 
the same, because the very moment it was consummated the "party 
ceased to be, that was the end of it, and there was nobody left to 
complain. 

Mr. SPOONER. My friend the Senator from Ohio is a good 
lawyer. He is analytical and he is accurate. But there is no 
middle ground. He has to take one side or the other. A contract 
between nations, by the very terms of which the moment it be- 
comes effective one dies, the Senator says is not a treaty. Now, 
that being true, how can he say that it may be more properly done 
by legislation than by some way that is not a treaty? 

Mr. FORAKER. It does not seem to me that there is any diffi- 
culty about it at all. There is a contract even in the case of the 
party ceasing to be who enters into the contract with us: it is a 
contract, but not a continuing one. There is a contract whenever 
the minds meet. But because it is not a continuing contract, but 
a consummated transaction, I do not think it requii-es a treaty for 
its consummation. 
Mr. SPOONER. Yes. 

Mr. FORAKER. When the minds meet, there is an agreement 
which is to be formulated; they put it into legal fonn and exe- 
cute it; and my contention is that the contract ceases to be, ex- 
cept only as an executed contract, with its execution. I used the 
word "properly," having relation to what I have said here briefly 
and what I said at some length when I spoke upon this subject 
the other day. 

Mr. SPOONER, I understood the Senator the other day to say 
that the very idea and essence of a treaty, which is a compact be- 
tween sovereign states, was that there should be two parties and 
a continTiing obligation. 
Mr. FORAKER. Certainly 1 did; and I sav so still. 
Mr. SPOONER. Allow me for a moment. ' That where, by the 
very terms of the contract itself, the moment it became effective 
one party to it was to be effaced," was to die: that that was not and 
could not be a treaty within the meaning of that word as used in 
the Constitution. 
Mr. FORAKER. And as used ordinarilv. 
Mr. SPOONER. V/ell, as used in the Constitution, because the 
word as used in the Constitution has to be construed in its ordi- 
nary acceptation. There is great power— there is no question 
about that— in the position of the Senator from Ohio, aud there 
never has been such a treaty made by the United States. Now. 
what I want to ask my friend is, accepting that as true and that 
under the Constitution a treaty or the power to make treaties dees 
not cover such an arrangement as was proposed with Hawaii, leav- 
ing the field of diplomacy and treaty and going into the field of 
legislation, where does he find the authority to admit by resolu- 
tion a sovereign country as a territory? As I understood' the Sen- 
ator the other day, he finds it under the general-welfare clause. 

Mr. FORAKER. I said under the inherent power and also 
nnder the general- welfare clause; but I said in the same connec- 
tion there are Senators here who have been taking eAception to 
the proposition that there was this inherent power, and for that 
reason I would not then stop to discuss that question. 
Mr. SPOONER. Which does my friend say it is? 
£531 



16 

Mr. FORAKER. For the sake of argument I would pass it by, 
although I thought the power was to be i'ound inherent in our 
sovereignty— attached to it necessarily as a part of our sover- 
eignty as a nation; and I said it was also to b3 found in the Con- 
stitution—expressly conferred upon Congress by that provision 
of the Constitution which authorizes Congress to provide for the 
general welfare. 

Mr. SPOONER. Does my friend claim that the source of power 
is to be found in both? 

Mr. FORAKER. I do. I think so. 
Mr. SPOONER. It is the higher law? 

Mr. FORAKER. I do not call it any higher law. The proposi- 
tion is that it is inherent in sovereignty to do whatever sover- 
eignty may see fit to do, and among other things to acquire terri- 
tory. The Senator from Wisconsin will admit that sovereignty 
ordinarily carries with it the inherent power to annex territory. 
I assume that he will admit it. If he will not, he will dissent 

now. His contention is that the United States 

Mr. SPOONER. I have made no contention. 
Mr. FORAKER. Well, so far as 1 understand the views of the 
Senator from Wisconsin, judging from the intimations he has 
thrown out here, his idea is that because our Government is one 

of limited powers 

Mr. SPOONER. Yes. , , ^ , . ^ . 

Mr. FORAKER. Having no power except only that which is 

expressly delegated by the Constitution 

Mr. SPOONER. Not at all. I understand thatthe constitution 
of a State is a limitation. I understand that the Constitution of 
the United States is a grant. 

Mr. FORAKER. Now, that is just the same thing 

Mr. SPOONER. Allow me to finish. I understand that the 
Congress of the United States has such legislative power as is 
granted to it expressly by the Constitution or by reasonable and 
necessary implication under the Constitution. When you leave 
the granted and implied powers, I want to know where the Sen- 
ator gets his theory of inherent sovereignty outside of the Consti- 
tution. , , . ,. , 

Mr. FORAKER. I do not leave the granted and implied pow- 
ers. I find it in the implied power. I do not differ from the Sen- 
ator from Wisconsin as to the definition he gives as to the power 
of the States and the powers of the General Government. 
Mr. SPOONER. Exactly. 

Mr. FORAKER. It is true, of course, that the constitutions 
of the States are instruments of limitation and the Constitution 
of the United States is an instrument of grant. The Constitu- 
tion of the United States grants certain powers, but the powers 
granted are not only those which are expressed, but also those 
which are implied. 
Mr. SPOONER. Now, what I want to ask my honorable 

friend . 

Mr. FORAKER. And among the implied powers is this power 
inherent in every other sovereignty. 
Mr. SPOONER. Oh, well, inherent. 

Mr. FORAKER. Now, let me put a point to the Senator from 
Wisconsin. I was talking with him in his seat a few minutes ago, 
and I trust 1 may with propriety recur to that conversation now. 
He was discussing this same proposition, and I know what his 
idea is about it, and I answered it then as I want to answer it here. 
8534 



17 

We must agree that as to the thirteen States before they came in, 
when they were States, before they accepted the Constitution, 
each one was a sovereignty. Each one of those sovereign States 
had every power that sovereignty enjoys ordinarily, and among 
the j)owers so enjoyed by each one of the sovereign States was the 
power to make treaties witli foreign nations, and any kind of a 
treaty it might choose to make, because there was no restriction 
tmless by itself upon the exercise of that power. It could make 
war; it could make a treaty for the acquisition of territory; it 
could annex in any way it saw fit to annex. 

But, Mr. President, no Senator here will contend that any State 
in this Union has that power now. That power has been lost to 
each and every State of the Union. As the price for coming into 
the Union, it was required to surrender it. The Constitution of 
the United States prohibits to the States the exercise of the treaty- 
making power with foreign nations. It prohibits all kinds of 
transactions on the part of States with foreign nations. No State 
could acquire territory by treaty or in any other manner. 

Therefore each one of the States in the Union has surrendered 
that power of sovereignty. No one of them has it. Are we to be 
told that that inherent power of sovereignty, which every Stato 
enjoyed before it came into the Union, has been lost to the States 
and has not been given to any other power? What has become of 
it? "Where has it gone? Our contention is that when to the 
States was denied this power, which they had a right to exercise 
as a sovereign power, it went by implication to the General Gov- 
ernment among the implied powers, and it is not any "higher 
law." It seems to me it is but the necessary and legitimate re- 
sult of a fair construction of the pi'ovisions of the Constitution. 

Mr. SPOONER. Now. will my friend allow me? 

The PRESIDING OFFICER. Does the Senator from Florida 
yield to the Senator from Wisconsin? 

Mr. MALLORY. Yes, sir. 

Mr, SPOONER. I am only asking for information. 

Mr. FORAKER. I shall be very glad to give any information 
I can to the Senator from Wisconsin, but it is very difficult to in- 
form the Senator from Wisconsin on a legal proposition. 

Mr. SPOONER. The Senator from Ohio says there are two 
forms of States, and that under the Confederation the States had 
the power to enter into treaty with foreign Governments, as I 
understood him. 

Mr. FORAKER. I did not say under the Confederation. I said 
independently and without regard to the Constitution , when they 
were free to act as States as they saw fit to act, to determine 
whether they would come into the Union or remain States. 

Mr. SPOONER. Very good. Then I will change the phrase of 
the proposition, although it means the same thing. Prior to the 
adoption of the Constitution the States had the power to enter into 
treaties with foreign governments, and they surrendered to the 
Federal Government by the adoption of the Constitution the power 
to enter into treaties with foreign governments, did they not? 

Mr. FORAKER. Yes. 

Mr. SPOONER. To what branch of the Federal Government 
did they give that power? 

Mr. FORAKER. It would necessarily go to ihe political de- 
partment and branch of the Government. It woiild not, of course, 
go to the judiciary without express provision; it goes as an im- 
l)lied power to the General Government. 
3531-2 



18 

Mr. SPOONER. That is as universal as the air we breathe. 

Mr. FORAKER. Does the Senator mean to assert that the 
General Government has the power hut is incapable of exercising 
it because no agency has been designated in the Constitution for 
the exercise of it? 

Mr. SPOONER. No; but an agency was designated in the Con- 
stitution for the exercise of the power to make treaties with foreign 
governments, which by the adoption of the Constitution the States 
surrendered. 

Mr. FORAKER. But has not the Senator from Wisconsin just 
now contended that this could not in the nature of things be a 
ti'eaty? 

Mr. SPOONER. I am not talking about 

Mr. FORAKER. If it is not a treaty, are we not entirely es- 
topped by the argument of the Senator from "Wisconsin from 
acquiring territory when we take in the whole of a territory and 
not simply a part? 

Mr. SPOONER. The trouble with my friend from Ohio is that 
he decides mv proposition before he knows what it is. 

Mr. FORAKER. The trouble with the Senator from Ohio is 
that he does not want the Senator from Wisconsin to misstate his 
proposition. 

Mr. SPOONER. I did not intend to do so. 

Mr. FORAKER. Of course he would not do so intentionally. 

Mr. SPOONER. All I meant to say was this: I agree entirely 
with the Senator from Ohio that beyond the limitations of the Con- 
stitution, treating the Stateseach as independent sovereignties, the 
States had the right to enter into contracts with foreign govern- 
ments, and when they entered into the Union and became a part of 
the Constitution of the United States they surrendered, of course, 
the right to enter into contracts with foreign governments, whether 
you call that a treaty, or an agreement, or a compact. But by the 
Constitution itself, to which they agreed, they designated the de- 
partment of the Federal Government to which they surrendered 
thepovrer to enter into contracts and compacts and treaties with 
foreign governments. That was not the Congress of the United 
States, but the President of the United States and the Senate. 
That is all I meant to say, and that, I think, my friend will not 
controvert. 

Mr. FORAKER. Yes; I do controvert it most positively, for 
my contention is that novfhere in the Constitution is it ex^^ressed 
what shall be the siibject-matter of a treaty. 

Mr. SPOONER. I agree to that. 

Mr. FORAKER. Nor a proper case for a treaty. 

Mr. SPOONER. I agree to that. 

Mr. FORAKER. I do not understand that the annexing power 
must be exercised in the way indicated by the Senator from 
Wisconsin, but when we have a case arising which it is admitted, 
as the Senator from Wisconsin admits, is not a proper case for 
treaty 

Mr. SPOONER. No. 

Mr. FORAKER. I understand the Senator to say "no," but 
surely he has been arguing that he agrees with me that this is 
not a proper case in the ordinary sense for a treaty, that a treaty 
implies a continuing contract. I will state the difference between 
us, as I xmderstand it. His contention is that when we come to 
a place where we can not act by ti'eaty we can not act at all. He 
agrees with me that we should not act by treaty when the whole 

353i 



19 

foreign country is to be brought in. There I differ .from him. I 
say when it comes to a case not proper to be dealt with by treaty, 
then we can act by the Congress of the United States, where all 
powers are lodged that belong to the Government not expressly 
lodged elsewhere. 

Mr. ALLEN. Will the Senator permit me to ask him if a con- 
stitution or a statute can operate extraterritorially? 

Mr. FORAKER. Certainly not. We went over that a few 
days ago pretty thoroughly, and it seemed to be agreed all around 
that that proposition was well taken. 

Ml'. ALLEN. If the Constitution is confined to the territory 
of the Government and can not reach to the territory and people 
of another government, and the statute is confined to the territory 
and the people of the Government and can not reach the people of 
another government, how can you annex those people by a law? 

Mr. FORAKER. You can not annex that people by a law or 
bv a joint resolution without the consent of the people. 
'Mr. ALLEN. No; but 

Mr. FORAKER. We can simply propose if we originate the 
transaction, or accept if they originate it. 

Mr. ALLEN. If the Constitution and statute begin and end 
on territorial limitation, how can you annex a people beyond that 
limitation bv statute? 

Mr. FORAKER. We have this kind of a law in the State of 
Ohio, applicable to cities of the first grade of the first class. It 
provides that in any city of the first grade of the first class there 
may be an annexation of territory whenever outlying, contiguous 
territory will comx^ly with certain terms and conditions, with a 
view of annexation, which the statute designates. Now, the first 
step is for the city to legislate by ordinance its side of the con- 
tract. That has no jurisdiction or no effect beyond the city lim- 
its. But when it is met on the other side by proper action on the 
part of contiguous territory, then it is provided that it may be 
regarded as annexed, and the city jurisdiction extends to it. Now, 
it is upon the same general principle, though, of course, not in 
the same way. 

Mr. ALLEN. That is a case of municipal extension. 

Mr. SPOONER. As I understand the argument of the Senator, 
it is that any agreement or contract, sub modo, I submit, which 
under the Constitution can not be entered into with a foreign 
government by the President and the Senate must of necessity 
be entered into by Congress with a foreign government. 

Mr. FORAKER. I did not fully answer the Senator from Ne- 
braska, but, if he will allow me, I will make answer now to the 
suggestion of the Senator from Wisconsin. My contention is that 
this Government is not without power to annex the Hawaiian Is- 
lands, and inasmuch as the proposition comes to us from the Gov- 
ernment that covers the whole of the territory belonging to it, 
and inasmvich as that contracting party is to be absolutely ab- 
sorbed by us— territory, people, government, all powers and all 
functions, and they are to cease to exist — I contend that not by 
treaty but by the joint resolution which we have under consid- 
eration is the most appropriate way for the annexation. 

Mr. SPOONER. Of course 

Mr. FORAKER. I am not willing to admit that we are with- 
out power to accept the whole of the territory when it is offered 
to us, and I do not understand how Senators can conceive that 
we can take a part and then deny to us the power to take it all. 
3531 



20 

Mr. ALLEN. I agree with the Senator, if the Senator will per- 
mit me 

Mr. SPOONER. Then the Senator will say, if the Senator from 
Nebraska will excuse me a moment, we can not find in the Con- 
stitution the power to take another sovereignty and government; 
we must find 'it somewhere else. 

Mr. FORAKER. I contend that we do find it in the Consti- 
tution. 

Mr. SPOONER. Where? 

Mr. FORAKER. In the implied power and 

Mr. SPOONER. What implied power? 

Mr. FORAKER. You admit that the^ 

Mr. SPOONER. No matter what I admit. What implied 
power? 

Mr. FORAKER. That our Government has the power inher- 
ent in all sovereigntv unless denied 

Mr. SPOONER. I did not say that. 

Mr. FORAKER. The Senator agreed with me a while ago, as I 
understood, that if a State of the Union could step hack out of 
the Union and be a State independent of the Union and not be 
bound by the Constitution, it would have a right to negotiate a 
treaty. 

Mr. SPOONER. I think Great Britain inherently could annex 
the United States, but I doubt whether Congress coiild annex 
Great Britain. 

Mr. FORAKER. I understand the proposition. Does the Sen- 
ator think that Great Britain has more sovereign power than one 
of the States of this Union would have if she were to step back 
into her statehood? 

Mr. SPOONER. I did not say that. 

Mr. FORAKER. I did not think the Senator would. 

Mr. SPOONER. I do not have to say that. 

Mr. ALLEN. There comes the distinction between the con- 
struction of a State constitution and a Federal Constitution. 

Mr. FORAKER. Let me finish so as to have in full my answer 
to the Senator from Wisconsin. My contention is that each and 
every State of this Union has exactly the same power to annex 
territory that England has, were the State separated from the 
Union and not bound by the Constitution and not limited by her 
own constitution; that is, that the people are a sovereign power. 
Thev have a right, of course, to place upon the government they 
mav institute in their States such limitations as they see fit; but 
if they do not limit the power of sovereignty, each and every 
State has a ri^ht to annex Great Britain if she sees fit to do it and 
can agree with Great Britain upon the terms; and I contend that 
that same power thus conceded to the State is lodged some- 
where to-day. The State that comes into this Union must sur- 
render the power. Where does it go? I contend that it goes to 
the General Government. That is my view of it. , ^^ ^ 

Mr. SPOONER. Could Great Britain annex the United States 
without a contract with the United States? 

Mr. FORAKER. I do not suppose she would annex us without 
having our consent in some form or other. 

Mr.^SPOONER. Where does Congress get the power to enter 
into a compact or contract or agreement with-a foreign nation? 

Mr. FORAKER. My contention is simply that the inherent 
power of sovereignty, which you must admit belongs in the State, 

3534 



21 

in the people of the State, exists still somewhere, and that it now 
belongs to the General Government. 

Mr. SPOONER. No, but 

Mr. FORAKER. The Senator admits it is not in the State? 

Mr. SPOOiS'ER. Yes. 

Mr. FORAKER. It has been given to the General Government. 
It is one of the implied powers of government. You ask what 
particular department of the Government has it. No particular 
department of the Government is expressly empowered by the 
Constitution to exercise that power, but the Congress of the United 
States has all the powers of government that belong to the Gov- 
ernment delegated by the States that are not expressly given to 
some other department of the Government, and if that power be 
not given to some other department of the Government and yet 
be given to the General Government, where can it reside except 
only in Congress? 

Mr. ALLEN. If wc have the implied power to annex a country 
by an implication of sovereignty, have we also the implied power 
to surrender our country to be annexed to another? 

Mr. FORAKER. I suppose if the people of this country should 
desire it to be annexed to some other country, they could bring it 
about. 

Mr. ALLEN. I am now talking about Congress, or the Gov- 
ernment proper. 

Mr. FORAKER. I think not at all. 

Mr. ALLEN. Why not? Is not that a corollary of the other 
proposition? 

Mr. FORAKER. We have simply delegated powers, and it is 
not an express power or an implied power that we should barter 
away the sovereignty of our country and the control of govern- 
ment of our country. But in the case before us it is different. 
The Government of the Republic of Hawaii is expressly empow- 
ered to do this identical thing by the constitution— the organic 
law of those islands. 

Mr. ALLEN. I beg the Senator's pardon. 

Mr. SPOONER. Can Hawaii make a treaty with the Congress 
of the United States? 

Mr. FORAKER. As I said the other day, that is a question 
that Hawaii can take care of. 

Mr. SPOONER. That is the question we have got to take 
care of. 

Mr. FORAKER. Suppose Hawaii has made a treaty? 

Mr. SPOONER. Will the Senator answer my question? The 
constitution of Hawaii authorizes the cession, if you call it so, of 
the land and the sovereignty by treaty. Now, can Congress make 
a treaty with Hawaii? 

Mr, FORAKER. I do not know what interpretation they put 
upon that. I should have some hesitation in saying that she 
could, but I do not have any hesitation in saying it is exactly 
within the spirit and intent of the framers of that organic law, 
that if she comes forward and accepts the tender we now make 
by this joint resolution, and we take possession of the island, I 
think the annexation will be effectual. 

Mr. ALLEN. I should like to ask the Senator one more ques- 
tion, with the permission of the Senator from Florida. Where 
the -Constitution points out specifically a method of annexation, 
does it not by implication exclude all other methods? 

Mr. FORAKER. Yes; I would think so. 
3534 



- 22 

Mr. ALLEN. When the Constitution provides that these things 
shall be accomplished by a treaty which shall be initiated by the 
President and concurred in by two-thirds of the Senate, does not 
that exclude every other method of annexation? 

Mr. FORAKER. If any such provision as that were found in 
the Constitution, that might be contended for; but as I said the 
other day in the colloquy I had with the Senator from Nebraska, 
I do not imderstand that there is any such jjrovision in the Con- 
stitution. 

Mr. ALLEN, I understand that to be there. 

Mr. FORAKER. I can not qtiote the exact language, but the 
Constitution of the United States simply provides that this Gov- 
ernment may make treaties. 

Mr. ALLEN. The President, by and with the advice and con- 
sent of the Senate. 

Mr. FORAKER. Yes, the President shall make a treaty and 
it shall be ratified by a two-thirds vote of the Senate. But it is 
nowhere stated in the Constitution, and nowhere else is it stated 
outside of the Constitution that I know of except only by Senators 
in this debate, that the annexation of territory must of necessity 
be by ti'eaty. We all agree that it is a proper subject-matter in 
certain cases. Some of us deny that it is a proper subject-matter 
in particular cases. My contention is that it is not in this case 
necessary to resort to a treaty. 

Mr. ALLEN. What is the treaty-making power, and to what 
does it extend? 

Mr. FORAKER. It is the President of the United States and 
the Senate. 

Mr. ALLEN. It embraces every subject-matter that may be in 
controversy between nations, does it not? 

Mr. TELLER. No. it does not. 

Mr. FORAKER. The Senator from Nebraska has said so. I 
do not concur in that proi^osition. That is what I have been ar- 
guing. 

Mr. TELLER. Our treaty-making power would not include 
everything that could be done. 

Mr. ALLEN. What is there in the relation between two nations 
that does not fall within the treaty-making power of the United 
States? 

Mr. TELLER. Mr. Jefferson said he had looked over the treaty 
made with Great Britain before the Jay treaty was made, before 
any other treaty, and he found a few things, not more than five 
or six, which might not have been included under the Constitu- 
tion. He does not say what they were, but there were some. I 
can name one to the Senator, and that is the question of revenue. 
There can be no treaty made that will bind the Government of 
the United States concerning the raising of revenue. 

Mr. ALLEN. Very well; that in its very nature is altogether 
domestic and can not be the subject of a treaty. 

Mr. TELLER. It is not because it is domestic; it is because 
the Constitution has put that business in the hands of Congress 
exclusively. 

Mr. ALLEN. No, Mr. President, not necessarily so, because the 
raising of revenue is purely a domestic matter. It lies at the foun- 
dation of the life of the nation, and it must be exercised by the 
Government alone without the consent or participation of a foreign 
power. But I say that neither Mr. Jefferson nor any other man 
in the history of this country has ever held that there is a solitary 

S531 



^3 

thing wLicli mny be in controversy between nations as sncli that 
is not properly reached by the treaty-making power, including the 
power of annexation. That being true, the Constitution x:)ointing 
out substantially the course to be i^ursued, it impliedly excludes 
every other power or everj' other method. 

Mr. FORAKER. I intended to draw attention, and will do so 
in order that it may appear in the Record in this connection, to 
the third paragraph of section 10 of the first paragraph of the Con- 
stitution, which is as follows: 

No State shall, ■without the consent of Congress, lay any duty of tonnage, 
keep troops or ships of war in time of peace, enter into any agreement or 
compact with another State or with a foreign power, or engage in war, imless 
actually invaded, or iu such imminent danger as will not admit of delay. 

There, in other words, is a denial to the State of the exercise of 
the treaty-making power. No State shall be allowed to make any 
contract with any other State or with any foreign power, and the 
denial of that power to the State, a power that it did admittedly 
have before it came into the Union, was by implication a grant of 
it to the General Government, because the power must, of neces- 
sity, rest and abide somewhere. 

Mr. ALLEN. If the Senator will follow that up, he will find 
another provision which invests the treaty-making power in the 
President of the United States and two-thirds of the Senate. 

Mr. FORAKER. Yes; that is true. 

Mr. ALLEN. When that power is expressly conferred on the 
President and on two-thirds of the Senate, can it be exercised by 
the other House? 

Mr. FORAKER. Of course, the treaty-making power can not 
be exercised by Congress. The only point in the whole contro- 
versy is whether or not this is necessarily the subject-matter of a 
treaty, whether or not this is an exercise of the treatj'-making 
l^ower. My contention is that it is not necessarily so. 

Mr. MALLORY. The position which the Senator from Ohio 
has taken struck me at the time when he assumed it some days 
ago as being the only position that those who advocate with him 
the annexation of ths Hawaiian Islands under this resolution 
could sustain. 

The Senator from Nevada [Mr. Stewart] proclaimed the fact 
that he did not believe that you could annex any territorj' by 
treaty at all, in the face of the history of this country and the 
precedents established by the annexation of Louisiana, Florida, 
and other territories to this countrj\ The Senator from Nevada 
found it was necessary, in order for him to maintain his position, 
that he should adopt that extraordinary attitude before the Sen- 
ate; that is, that the treaty-making power did not include the an- 
nexation of territory from foreign countries. 

Mr. TELLER. Will the Senator allow me to ask him a ques- 
tion? 

Mr. MALLORY. Certainly. 

Mr. TE LLER. The Senator refers to my position , which I think 
he does not quite fully understand. 

Mr. MALLORY. I should be glad to be corrected. 

Mr. TELLER. I did not mean to say, and 1 do not think I 
have said, that there might not be specific power under the Con- 
stitution to acquire territory. It may be included in the power 
to admit new States. I do not say that it is not. What I intended 
to say was that if the power could not there be found — which has 
been a mooted question, and very ably discussed on very many 
3534 



24 

occasions by very strong men on both sides — if it could not be 
found there, it certainly could be found in the general authority 
of every sovereign power. 

Now, I want to read, without committing myself to either prop- 
osition; that is to say, I do not wish now to commit myself to the 
proposition that you may not under the power to admit States 
take in territory which did not belong to the Government at that 
time; but I want to read to the Senator from Florida, who is a 
Democrat, what Mr. Jefferson said about this question when the 
Constitution was new. I suppose the fact that Mr. Jefferson sub- 
sequently modified his views about twenty years later will not at 
all militate against the strength of his statement as he then made 
it. After he had taken the step and made the treaty he wrote a 
letter to Mr. Breckenridge which is dated on the l'2th of August, 
1803. I will not read the whole of the letter; but I will say, if I 
get an opportunity for half an hour, I shall hereafter present some 
authorities on this constitutional question, but I do not want to 
do it in the time of the Senator from Florida. 

Mr. SPOONER. Will half an hour be sufficient time for the 
Senator's deliverance? 

Mr. TELLER. I tliink I can fau-ly present the initiatory in 
half an hour. 

Speaking of this treaty, Mr. Jefferson says: 

This treaty must of course be laid before both Houses, because both have 
important lunctions to exercise respecting it. 

That is, the House of Representatives had to appropriate for 
the payment of the money. 

They, I presume, will see their duty to their country in ratifying and pay- 
ing for it, so as to secure a good which would otherwiso probably be never 
again in their power. But I suppose they must then appeal to the nation for 
an additional article to the Constitution approving and confirming an act 
which the nation had not previously authorized. The Constitution has made 
no provision for our holding foreign territory, still less for incorporating 
foreign nations into our Union. The Executive in seizing the fugitive occur- 
rence which so much advances the good of their country, have done an act 
beyond the Constitution. 

It is not possible for language to more plainly set out the opin- 
ion of Mr. Jefferson upon that act of his. He continues: 

The Legislature, in casting behind them metaphysical subtleties and risk- 
ing themselves like faithful servants, must ratify and pay for it and throw 
themselves on their country for doing for them unauthorized what we 
know they would have done for themselves had they been in a situation to 
do it. It is the case of a guardian investing the money of his ward in pur- 
chasing an important adjacent territory and saying to him when of age: "I 
did this for your good. I pretend to no right to bind you. You may disa- 
vow me, and I must get out of the scrape as I can. I thought it my duty to 
risk myself for you." 

Then he speaks of what the nation will do, and he says: 

But we shall not be disavowed by the nation, and their act of indemnity 
will confirm and not weaken the Constitution, by more strongly marking out 
its lines. 

The remainder of the letter does not refer to this question. 

Mr. BACON. The Senator will doubtless remember the fact 
that in that same communication, I think it was, Mr. Jefferson 
pointed out the fact that what he had done had to be followed by 
a treaty by the Senate and by an appropriation by Congress. I 
think the Senator will find it in the same document, 

Mr. TELLER. I think not. 

Mr. BACON. If not in that document, there is no question 
about the fact that Mr. Jefferson does lay down the proposition 
3531 



25 

that it must be by treaty, and that the money to pay for it mnst 
be appropriated by Congress. 

Mr. TELLER. He does not lay it down that it must be by 
treaty; and if the Senator will show nie where that is, or that it 
can be done in any. other way, I shall be glad. 
Mr. BACON. I can do it. 

Mr. TELLER. I shall be glad of it. Undoubtedly Mr. Jeffer- 
son understood at that time that that was the proper method. I 
am not myself assailing that method, but I do not recollect that 
Mr. Jefferson said it could only be done by treaty. When he de- 
clared under the Constitution that it could not be done at all, how 
could he have said that? 
Mr. BACON. JMr. President 

Mr. TELLER. Wait a minute. How could Mr. Jefferson have 
said it could be done by treaty and treaty alone, when he declared 
it could not be done at all within constitutional limits? Any 
other method would have been just as legal as this method, and 
he said you could not do it at all without a violation of the Con- 
stitution. 

Mr. BACON. The Senator will recognize the fact, as everybody 
recognizes it, that Mr. Jefferson was not correct, and the Supreme 
Court of the United States have held that for the purpose of erect- 
ing a Territory into a State the United States Government is com- 
petent to acquire territory, and the only question is how it shall 
be done. 

But, if the Senator will pardon me a moment, as he challenged 
the correctness of my statement— and I will get the book directly 
and show it to him— the statement of Mr. Jefferson was this: That 
what had been done must be followed by two things — by a ratifi- 
cation of the act by the treaty-making power and by an appropri- 
ation of money to pay for it by Congi-ess. 

Mr. TELLER. Oh, yes. 

Mr. BACON. It must be done in that way. 

Mr. TELLER. But Mr. Jefferson does not say anywhere that 
I have been able to find in his writings— and I have been somewhat 
familiar with them for many years— that that is the only method, 
because he says that was not the method at all at that time. I 
believe about 1823 there could be found some expressions in Mr. 
Jefferson's writings from which it would appear that he changed 
his views where he was speaking of the power of the Government 
through a treaty, but he is very exijlicit— and I shall, if I have an 
opportunity, present the authorities— in the declaration that there 
were some things that could not be done by treaty. 

Mr. BACON . I desire to ask the Senator there, with his per- 
mission and the permission of the Senator from Florida, one ques- 
tion, and that is, whether he recognizes that it is legitimate to 
acquire territory of a foreign government by treaty with this 
Government? 

Mr. TELLER. I have stated that. 

Mr. BACON, I understand the Senator to say that it is. Am' 
I correct? 

Mr. TELLER. Yes. 

Mr. BACON. Then I want to ask the Senator if he contends 
that there is concurrent jurisdiction to acquire foreign territory 
both in the treaty-making power and in the Congress? Is that the 
position of the Senator? 

Mr. TELLER. That is exactly my position, and that has beeu 
the position of the Government of the United States. 
S531 



20 

Mr. BACON. I think not. 

Mr. TELLER. That is exactly the position. You may take it 
by treaty, and if your treaty requires anything to be clone by Con- 
gress, Congress may repudiate the treaty by tailing to do it. 

Mr. BACON. That is not the question. 

Mr. SPOONER. BiTt Congress does not make a treaty. 

Mr. TELLER. No; it does not. You might admit territory 
without a treaty, because you did it in the case of Texas. 

Mr. BACON. No. 

Mr. TELLER. Yes, you did. 

Mr. BACON. Never. 

Mr. TELLER. Yes: vou admitted Texas without a treaty. 

Mr. SPOONER. Texas was not a Territory. 

Mr. TELLER. When I speak of aumitting territory. I do not 
mean admitting it as a Territory. I mean that you take under 
the jurisdiction of the United States what before has not been 
under its jurisdiction. 

Mr. SPOONER. Will the Senator from Florida allow mc a 
moment? 

Mr. MALLORY. Y^es. sir. 

Mr. SPOONER. Nobody can pretend that Congress has not 
the power to admit a State. It must be considered settled now 
by the case of Texas that Congi'ess may admit a State: but where 
has Congress ever admitted a Territory as a Territory? 

Mr. TELLER. Mr. President, because we have not exercised 
the legislative power to admit to this country an inferior relation, 
it does not follow that we have not that power when we have 
exercised the greater power. However, I do not want to discuss 
that question now, because it is not fa?r to the Senator from Flor- 
ida [Mr. Mat^lory] who has the floor; but I shall take occasion 
hereafter, if I can get the opportunity, to shovv- the absurdity of 
the proposition that you can admit a State by an act of law to the 
highest possible relation between the Government and the people, 
and then that you can not admit a territory or a region of country 
to an inferior relation. I want to hear some lawyer tell me why 
the exercise of the power which admits a State to that high rela- 
tion can not admit a section of a foreign country to an inferior 
relation; that you can not acquire territory out of which a State 
can be created. It can not be defended upon philosophy, princi- 
ple, precedent, or anything else, 

Mr. MALLORY^. Mr. President, when interrupted I was about 
winding up my review of the arguments presented by Senators on 
the afSrmative of this question. Since then we have had some 
additional arguments by the Senator from Colorado [Mr. Teller] 
and the Senator from Ohio [Mr. Foraker] explaining more fully 
the positions which they hold with regard to the question. The 
two Senators differ, if I am not mistaken, in the positions which 
they have assumed. The Senator from Ohio holds that such a 
. compact as is this now pending, whereby one of the contracting 
powers is by the act of the compact itself stricken out of existence, 
is not a treaty, and can not be a treaty, and therefore can not be 
dealt with by the treaty-making power. 

Mr. FORAKER. I have not said that. I want to remind the 
Senator again that what I have been saying is that it is not a con- 
tinuing contract, and therefore not a treaty in the sense in which 
we ordinarily employ that term. It is of course a contract when 
the two parties' minds meet. The fact is that it is executed by 
the consummation of the transaction, and by reason of that fact 
3,-3l 



27 

it becomes a thing of the past, which makes it inappropriate to 
call it a treaty, as I contend, in the ordinary sense. 

Mr. MALLORY. Not a treaty in the ordinary sense? 

Mr. FORAKER. It is a past transaction; it is consummated. 

Mr. MALLORY. I should like to ask the Senator, in order to 
understand his position exactly, Does he contend that the treaty 
which is now ujion the table of the Senate is not an instrument 
that should be acted upon by the Senate because of the fact that 
the Hawaiian Islands will go out of existence as a sovereign power? 

Mr. FORAKER. No; I have said all the time that in my judg- 
ment you can act upon the treaty and you can consummate the 
transaction in that way; but because of the fact that the Hawaiian 
Republic ceases to exist there can not be any treaty continuing iu 
the future. It will end at once with the consummation of the 
transaction. Therefore, I say, while you can consummate the 
transaction in that way, yet that way is not exclusive, nor, in my 
judgment, the most appropriate. 

Mr. MALLORY. In other words, the position of the Senator 
from Ohio, if I understand it, is that j'ou can effect this annexa- 
tion by treaty, but that it is better to effect it in the manner pro- 
posed by those who favor this legislation, 

Mr. FORAKER. I preferred that method personally before 
these resolutions wore introduced, just as I have since. 

Mr. MALLORY. In other words, the Senator from Ohio is in 
the same position regarding this proposition as the Senator from 
Colorado; that is, that either the treaty -making power or this in- 
definite power possessed by Congress may be exercised with refer- 
ence to this mattei' 

Mr. FORAKER. I do not think it is exclusive. 

Mr. MALLORY. Does the Senator think they are concurrent 
powers? 

Mr. FORAKER. I do not think they are exclusive the one of 
the other. 

Mr. MALLORY. Mr. President, that is the position of two of 
the advocates of this resolution in justification of the constitu- 
tionality of the measure. I shall not consume time by tmdertak- 
ing to review other arguments, but merely to refer to them, as I 
have referred to them, and take them up incidentally in the course 
of my remarks. 

The Constitution of the United States names three distinct 
branches of power conferred by the people of the United States 
upon this Government — the legislative, the judicial, and the ex- 
ecutive. All legislative power is confided to Congress; all execu- 
tive power is conferred upon the President; and all judicial power 
is conferred upon the judiciary. The three branches or elements 
of this composite Government necessarily must be separate and 
distinct; and it has been the province of the judiciary, which has 
the construction and interpretation of the laws devolved upon it — 
it has been its province and its duty from the beginning to see 
that neither one nor the other branch of the Government tran- 
scends the limits of its legitimate power, and consequently we 
have in the course of the century that has passed over our heads 
as a nation any number of decisions of our Supreme Court bear- 
ing upon the question of the exercise of illegitimate power by one 
or the other of these branches of the Government. 

The treaty-making power — that is, the power of making con- 
tracts with foreign sovereignties, not with foreign individuals^ 
the power of making contracts or comijacts, conventions or agree- 

3531 



28 

ments, with foreign nationalities, sovereignties, is confided to the 
President, by and with the advice and consent of two-thirds of the 
Senate. It is embodied in the Constitution under the head of 
Executive power, and is so worded that the President is the one who 
has to take the initiative and upon whom the burden of acting 
lies. The Senate has merely the power of veto, of approving or 
disapproving the action of the Executive in the matter of treaties. 

The treaty-making power, necessarily from the definition of 
treaties as given to us by the best legal authorities, includes all 
contracts, agreements, and negotiations of all kinds with the na- 
tions of the earth, unless there is some limitation in the Constitii- 
tion upon it. 

On this question, Mr. President. I read an extract from Duer's 
Constitutional Jurisprudence, which I believe is familiar to most 
of the Senators, at least those who are lawyers, bearing upon the 
subject. On page 231 he says: 

That department of the Govei'nment which is intrusted with the power of 
making treaties may bind the national faith at its discretion; for the treaty- 
making power must be coextensive with the national exigencies, and neces- 
sarily involves in it every branch of the national sovereignty of which the 
operation may be necessary to give effect to negotiations and'compacts with 
foreign nations. If a nation have conferred on its executive department 
without reserve the right of treating and contracting with other sovereign- 
ties, it is considered as having invested it with all the power necessary to 
make a valid contract, because that department is the organ of the govern- 
ment for the purpose, and its contracts are made by the deputed will of the 
nation. The fundamental laws of the state may withhold from it the power 
of alienating the public domain or other property belonging to it; but if 
there be no express provision of that kind, the inference is that it has con- 
fided to the dep.irtment charged with the duty and the power of making 
treaties a discretion commensurate with all the great interests of the nation. 

In support of that he cites Yattel's Law of Nations, 3 Dallas, 
199, and Grotius's Law of War and Peace. He then continues: 

The concurrence of each branch of the legislative power, we have seen, is 
necessary to a declaration of war, while the President, with the advice and 
consent of the Senate alone, may conclude a treaty of peace. 

Something that was denied, I believe, here to-day by a Senator, 
who claimed that the Congress also could conclude a treaty of 
peace. To repeat: 

The concurrence of each branch of the legislative power, we have seen, 
is necessary to a declaration of war, while the President, with the advice and 
consent of the Senate alone, may conclude a treaty of peace. Now, a power 
to make treaties necessarily implies a power to settle the terms on which 
they shall be concluded, and foreign States could not deal safely with the 
Government on any other presumption. That branch of the Government 
which is intrusted thus largely and generally with authority to make valid 
treaties of peace can, of course, bind the nation by the alienation of part of 
its territory; and this, according to an approved writer on the law of nations, 
is equally the case whether that territory be already in the occupation of the 
enemy or remain in possession of the nation, or whether the property be 
public or private. 

I woiild have Senators bear in mind that there is no restraint, 
limitation, or qualification upon the trea,ty-making powers con- 
ferred on the Executive by the Constitution. It extends to every- 
thing, and unless it can be shown that a proposed contract, such 
as is pending here upon our table, between a foreign Government 
and the United States is not a treaty, then we have, it seems to 
me, necessarily to be governed by the action of the treaty-making 
power in the premises. 

Mr. Hamilton, in his works, volume 7, page 504, speaking of this 
subject, says: 

1. As to the theory of the Constitution.— The Constitution of the United 
States distributes its powers into three departments— legislative, executive, 
3534 



29 

jndiciary. The first article defines the structure and specifies the various 
powers of the legislative depaitmeut; the second article establishes the or- 
ganization and povrers of the executive department; the third article does 
the same with respect to the judiciary department; the fourtli and fifth 
and sixth articles, which are the last, are a miscellany of particular provi- 
sions. 

The first article declares that "all legislative power granted by the Con- 
stitution shall be vested in a Congress of the United States, which shall con- 
sist of a Senate and a House of Representatives.'' 

The second article, which organizes and regulates the executive depart- 
ment, declares that the '•executive power shall be vested in a President of 
the United States of America," and proceeding to detail particular authori- 
ties of the Executive, it declares that the "President shall have power, by 
and with the advice and consent of the Senate, to make treaties, provided 
two-thirds of the Senators present concur." There is in no part of the Con- 
stitution any explanation of this power to make ti-eaties and definition of its 
objects or delineation of its bounds. The only other provision in the Consti- 
tution respecting it is in the sixth article, which provides, as already noticed, 
that all treaties made or which shall be made under the authority of the 
United States shall be the supreme law of the land: and this notwithstanding 
"anything in the constitution or laws of any State to the contrary. 

it was impossible for words more comprehensive to be used than those 
which grant the power to make treaties. 

Now mark the language of Mr. Hamilton: 

They are such as would naturally be employed to confer a plenipotentiary 
authority. A power to make treaties, granted in these indefinite terms, ex- 
tends to all kinds of treaties and with all the latitude wliich such a power 
under any form of government can possess. The power "to make" implies 
a power to act authoritatively and conclusively, independent of the after 
clause which expressly places treaties among the supreme laws of the laud. 
The thing to be made is a treaty. 

With regard to the objects of the treaty, there being no specification, there 
is, of course, a carte blanche. The general proposition must tuerefore be 
that whatever is a proper subject of compact between nation and nation may 
be embraced by a treaty between the President of the United States, with 
the advice and consent of the Senate, and the correspondent organ of a for- 
eign state. 

Now, we have the assurance of at least two Senators who have 
ably advocated the annexation cause that this instrument which 
is now in a state of suspended animation and lying ui^on tlie table 
of the Senate, namely, the alleged annexation treaty, is, to a cer- 
tain extent at least, a treaty, or would be if it were ratified. 

If the annexation of a sovereignty is a matter that "is a proper 
subject of contract between nation and nation"— and no one will 
deny that the annexation of one sovereignty to another is a proper 
matter of contract, for there is no other way, except by the exer- 
cise of force, that it can be done— it ' ' may be embraced by a treaty 
between the United States, with the advice and consent of the 
Senate, and the corresponding organ in a foreign state." Again, 
on page 518 of the same works, volume 7, Mr. Hamilton says: 

The manner in which the power of treaty, as it exists in the Constitution, 
was understood by the convention in framing it, and by the people in adopt- 
ing it, is the point next to be considered. 

As to the sense of the convention, the secrecy with which their delibera- 
tions were conducted does not permit any formal proof of the opinions and 
views which prevailed in digesting the power of treaties. But from the best 
opportunity of knowing the fact, I aver that it was understood b\' all to be 
the intent of the provision to give to that power the most ample latitude— to 
render it competent to all the stipulations which the e.xigencies of national 
afl:airs might require; competent to the making of treaties of alliance, trea- 
ti?s of commerce, treaties of peace, and every other species of convention 
usual among nations; and competent in the course of its exercise for these 
purposes to control and bind the legislative power of Congress. 

And it was emphatically for this reason that it was so carefully guarded, 
the cooperation of two-thirds of the Senate, with the Pi-esident, being re- 
quired to make any treaty whatever. I appeal for this with confidence to 
every memVior of the convention— particularly to those in the two Houses of 
Congress. Two of these are in the House of Representatives, Mr. Madison 
and Mr. Baldwin. It is expected by the adversaries of the treaty that these 
gentlemen will, in their places, obstruct its execution. However this may 
3531 



30 

bs, I feel a confidence that neither of them will deny the assertion I have 
made. To suppose them capable of such a denial were to suppose thorn ut- 
terly regardless of truth. 

In other words, we have it from Mr. Hamilton and we have it 
from the extracts whicli I have read from Professor Duers work 
that the treatj'-making power of the Executive and the Senate is 
adequate for all the stipulations which the exigencies of national 
affairs may require. Chancellor Kent, also, in his first Commen- 
taries, thirteenth edition, page 1G6, says: 

The department of the Government that is intrusted by the Constitution 
with the treaty-making power is competent to bind the national faith in its 
discretion, for the power to make treaties of peace must bo coextensive with 
all the exigencies of the nation, and necessarily involves in it that portion of 
the national sovereignty which has the exclusive direction of diplomatic ne- 
gotiations and contracts with foreign powers. All treaties made by that 
power become of absolute efficacy because they are the supreme law of the 
land. There can be no doubt that the power competent to bind the nation 
by treaty may alienate the public domain and property by treaty. 

* * * * * * * 

The power that is intrusted generallv and largely with authority to make 
valid treaties of peace can, of course, bind the nation by alienation of part of 
its territory. 

There Chancellor Kent goes to the extent of declaring, and so 
do others, and all others of any authoritative standing who have 
discussed this question, that not only can you annex territory, 
but that the sovereign has the right, itnless there is some limita- 
tion or qualification in the organic law to prevent, to alienate its 
own territory, and I do not know that there is any qualification 
CT any limitation on the treaty-making i)ower, possessed by the 
President and the Senate under our Constitution, which would 
prevent us from alienating territory if it were conceived advis- 
able for the best interests of the nation that it should be done. 

The Supreme Court of the United States in 17 Wallace, page 
242, in the case of Holden vs. Joy, referring to the same subject, 
the latitude of power possessed by the Executive and the Senate 
in the exercise of the treaty-making function, says: 

Express power is given to the President, by and with the advice and con- 
sent of the Senate, to make treaties, provided two-thirds of the Senators 
present concur, and inasmuch as the power is given, in general terms, with- 
out any description of the objects intended to be embraced within its scope, 
it must be assumed that the f ramers of the Constitution intended that it 
should extend to all those objects which, in the intercourse of nations, had 
usually been regarded as the proper subjects of negotiation and treaty, if not 
inconsistent with the nature of our Government and the relation between 
the States and United States. 

Therefore we see that under the treaty-making power the Presi- 
dent and two-thirds of the Senate are vested with plenary author- 
ity to do anything in connection with foreign relations that has 
ever heretofore been done by treaty to engage in all stipulations, 
contracts, conventions, or pacts which national exigencies or na- 
tional objects may require. I can conceive of no transaction of 
the character of a negotiation that can be undertaken between 
two sovereignties in which there is any element of a contract that 
is not a treaty; and it will not do to say, for the purpose of get- 
ting rid of the objections presented in this debate, that this in- 
strument which we have before us still pending, a proposed treaty 
between the Hawaiian Government and the United States, is not 
a treaty because of the fact that its ratification will extinguish 
the existence of one of the parties thereto. It seems to me that 
is not even a specious assumption, and that it can not be main- 
tained. It must be a treaty before the sovereignty of the Hawaiian 
Islands is extinguished. 

C531 



31 

Undoubtedly, on the ratification of the treaty the sovereignty of 
the Hawaiian islands would pass out of being; but before it passed 
out of being, before that sovereignty ceased to exist, it would be 
necessary that the ti*eaty should be ratified, and that a tretity 
should exist, if only for an instant of time. If it was a treaty at 
one time, if it was for a single instant a treaty, then it was within 
the legitimate province and proper power of the President and 
the Senate to deal with it and constitute a subject which the Con- 
stitution has expressly taken from the jurisdiction of Congress. 

The joint resolution which is under consideration is entitled 
"A joint resolution to provide for annexing the Hawaiian Islands 
to the United States/' and it begins with a preamble, a portion of 
which I will read: 

Whereas tbe Government of tho Republic of Hawaii having, in due form, 
signifled its consent, in the manner provided by its c.jnstitution, to cede ab- 
solutely and without reserve to the United States of America all rights of 
sovereignty, etc. 

On that representation of the facts the body of the joint resolu- 
tion declares that "said cession is accepted, ratified, and con- 
firmed."' It is a singular fact, Mr. President, that the author of 
the joint resolution should have thought proper to indulge in siich 
a periphrastic method of expressing a very simi^Ie fact as he has 
in the use of the language "indue form signified its consent." It 
is true the Hawaiian Republic has in due form signified its con- 
sent in the manner provided in its constitution, but to whom has 
it signified that consent and in v/hat way? 

In what manner has it signified it? They have signified that 
consent to the Executive of the United States, the power with 
which they are properly treating, and he has presented their sig- 
nification of consent to the body which has concern of the matter 
in conjimction with him, the Senate of the United States, with 
his recommendation or approval of the treaty. In other words, 
the House of Representatives, by joint resolution sent to the 
Senate, informs the Senate that whereas the Hawaiian Republic 
has by treaty proposed to be entered into between it and the 
United States by the proper instrumentalities for dealing with 
treaties, namely, the President and the Senate, signified its pur- 
pose to do certain things, therefore the House of Representatives, 
without any official or authoritative information upon the sub- 
ject, with nothing on its files to show that it has any knowledge 
whether the facts it alleges to be true are actually true— the House 
of Representatives, whicii is not a part of the treaty-making power 
under the Constitution, whether it is by wild implication or not, 
without, as I say, any official or authoritJitive information as to 
the transaction in question between the Republic of Havv^aii and 
the Republic of the United States, undertakes to tell us that it 
has accepted, ratified, and confirmed — what? The cession. What 
cession, Mr, President? Has there been a cession of any territory 
here? There has not. But it was necessary, in order for the House 
of Representatives to take jurisdiction of this matter, to get its 
grip, so to speak, upon the subject, to state that there was a cession. 

Mr. CAFFERY. It is nothing more than a willingness to cede. 

Mr. MALLORY. It is simply a proposition to our treat}-- 
making power to make us a cession. It was not made to the 
House of Representatives. It is a matter that comes to this coun- 
try through its Executive without the intervention of the House 
of Representatives, with which it has no concern, and while the 
proposed treaty is still unacted upon and may be acted upon, for 
3534 



32 

all the House knows, to-morrow or next day by a two-thirds ma- 
jority of the Senate, it undertakes to submit the same subject- 
matter, the same mutual obligations and stipulations that are 
contained in the proposed treaty to the Government of Hawaii 
for its acceptance and concurrence, whereby the object, end, and 
purpose sought by the treaty will be accomplished by the action 
of the President of the United States, a majority of the House of 
Representatives, and a majority of the Senate. 

But the Constitution ordains that in order to do that there must 
be a majority of two-thirds in the Senate. With the treaty still 
jiending in the Senate, the whole matter is sought to be wrested 
from the hands of those to whom the Constitiition has confided it, 
and a precedent established which will probably come back again 
and again to vex and distract the conscientious lawmakers of this 
country. Why? Has anyone said why? I do not undertake to 
answer the question, though I think I can. 

It has been urged that we are in a state of great emergency; 
that this is absolutely essential to be done now. But, Mr. Presi- 
dent, with all the clamor that has been raised we have not heard 
any real reason why due consideration should not be given; we 
have heard no reason why such debate should not be had as would 
enable not only the Congress but the people of the United States 
to thoroughly understand the question; no reason why we should 
not ^Yix\t until the next session of Congress in order to act finally 
upon the question of the treaty. I have heard no reason from the 
most earnest advocate of the measure to justify this haste and 
the apparent willingness to subvert a principle of our Constitu- 
tion and overturn doctrines that have been adhered to as funda- 
mental by the ablest and most venerated of our legislators and 
statesmen. 

Mr. CAFFERY. Y\'ith the permission of the Senator from 
Florida 

Mr. MALLORY. Certainly. 

Mr. CAFFERY. I ask him if the very attempt to annex Hawaii 
by treaty — that attempt persisted in by two Administrations, Har- 
rison's Administration and this Administration — does not show 
that the President at least is convinced that annexation is properly 
done and only done through the treaty-making power? 

Mr. MALLORY. I really do not know that I could answer 
that question, but I would say that so far as the Senate knows (I 
am speaking now as knowing officially) the President believes 
that the only way to annex this territory to the United States is 
by treaty, because the only communication the Executive has 
favored us with on this subject has been in connection with the 
treaty, whereby we are to infer at least that he is in favor of the 
l^rompt and early ratification of that treaty. Whether there has 
been any private or unofficial intimation from the Executive to 
inspire this resolution in the other branch of Congress 1 do not 
pretend to say. I would not undertake to express an opinion 
upon that point. 

Mr. CAFFERY. Is not the action of the President at least 
significant that he thinks the treaty-making power is concurrent 
with the legislative power? And if that be so, is it not a universal 
principle of law that where there is concurrent jurisdiction the 
first jurisdiction which seizes hold of the subject-matter must ex- 
haust the jurisdiction? 

Mr. MALLORY. I do not know. The question is one which I 
3531 



33 

have not considered, and it involves some points that T would not 
undertake to consider now. 

Mr. President. 1 have not referred, and I do not intend to refer, 
to the questions of expediencj' and policy involved in this propo- 
sition. I regard them as important. I can see, as far as my judg- 
ment will permit me. a great deal that can be said on both sides 
of that question. But to my mind, before we can enter upon the 
consideration of the policy of the measure it is necessary for us 
to determine as to our power and authority in the premises, the 
legitimacy of the proceeding which is proposed to be followed for 
carrying out the object sought. 

I have undertaken in a somewhat disconnected way to briefly 
advert to what has been said in favor of the right to take this 
step and to give the reasons which have presented themselves to 
my mind for believing that the authority for it is not to be found 
in the Constitution and also for believing that what authority 
there is in the Constitution bearing on the subject is prohibitory 
and antagonistic to it. I do not see any necessity for throwing 
overboard the treaty, so to speak, and failing to take action on it, 
because I think the matter of the annexation of Hawaii by treaty 
is still one upon which a majority of our people have not yet 
reached a conclusion. I am inclined to think that had not the 
proposition been burdened with the weight of the constitutional 
objection which, in my judgment, necessarily attaches to tliis 
effort, much of the earnest antagonism which it has excited would 
have remained unmanifested. 

But, sir, I can not, as a Senator, as one who believes that it is 
his duty to consider well the constitutional sanction of an act be- 
C5 fore he undertakes, in his Senatorial capacity, to put such act in 
"S effect; as one who believes that the Constitution is a sacred instru 

ment which should be regarded with the reverence with which 
-' we were wont to regard the religious tenets that were taught us 

in our youth, I can not permit the proposed action to be taken 
without entering my protest. Believing as 1 believe, that any 
lapse from the observance of the Constitutions sacred character 
. is a most dangerous step, and one that can hardly, if ever, be 
retraced; knowing as I know, that there are to-day constant 
assaults upon its intes4ritv. and that the necessities of party or of 
faction will not hesitate, if the opportunity presents, to make 
further and more impudent attacks upon it, I have felt. Mr. Presi- 
dent, that it was my duty to stand up in this Chamber and utter 
my protest, feeble as it is, against this ill-considered proposition, 
because it involves not only great (luestions of iiolicy heretofore 
untried and unconsidered, but also and especially because it in- 
volves a flagrant, gratuitous, and most alarming infraction of the 
fundamental law of the laud. 



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